Content warning: This story includes allegations of sexual assault.
LONDON, Ont. — Justice Maria Carroccia ruled on Wednesday at the trial of five former NHLers accused of sexual assault that there were four instances of inconsistencies in the testimony of Brett Howden when compared with his previous statements.
The ruling came after a day of legal wrangling in a voir dire between assistant Crown attorney Meaghan Cunningham and members of the defence teams regarding the inconsistency of Howden’s testimony from Tuesday.
Earlier in the day, Cunningham had laid out 18 areas in which the Crown felt Howden’s testimony from Tuesday was contradictory or inconsistent with statements he gave to Hockey Canada investigators in 2018 and 2022, and to London police in 2023, as well as from what was in text messages between Howden and fellow 2018 Canadian national junior team player Taylor Raddysh, who was Howden’s roommate at the Delta Armouries hotel in June 2018.
Cunningham had earlier applied under the Canada Evidence Act to cross-examine Howden, who is a witness called by the Crown, about the 18 inconsistencies.
Carroccia is expected to rule on Thursday whether the Crown can move forward with cross-examination on some of Howden’s answers. The Crown and defence lawyers have agreed to meet before court resumes on Thursday to discuss next steps before the ruling.
A certain amount of memory loss or difference in remembering is usually acceptable in court, especially in a trial that takes place a long time after an alleged crime has been committed. But the Crown was contending that Howden’s memory loss was “feigned” and “not a sincere one” or within the realm of reasonable.
In her ruling, Carroccia said she did not find that Howden feigned a lack of memory and that he was effectively adopting his previous statements when asked to refresh his memory with them by the Crown. She also said she found no basis for finding Howden was being untruthful.
“In his 2023 interview, he does remember many details from 2018, including details he claims to have no memory of today,” Cunningham told the judge. “It’s not the case where we can simply chalk this up to the passage of time.”
During testimony on Tuesday, Howden used different terms than he used in his statements when describing what Alex Formenton said when he and E.M., as the complainant is known because of a publication ban on her name, went to the hotel room bathroom and had sex.
Cunningham said on Wednesday that the difference in the language used was “critical” to the Crown’s case.
Cunningham said Howden told a Hockey Canada investigation in 2018 that he remembered Formenton saying, “Will I get in trouble for this? Am I OK to do this? Do you think it’s fine? Am I allowed to do this?”
In other testimony on Tuesday, Howden testified he heard Formenton ask, “Should I be doing this?”
Cunningham called it “a material difference” between “Should I do this?” and “Will I get into trouble if I do this?”
Howden also testified he couldn’t remember how he felt after seeing Dillon Dube allegedly slapping E.M. on the buttocks, whereas in his statement to London police he said “that was basically the thing that pushed me out the door.”
Michael McLeod has been charged with two counts of sexual assault, including one relating to aiding in the offence. Dube, Cal Foote, Formenton and Carter Hart have each been charged with one count of sexual assault. All have pleaded not guilty to their charges.
The Ontario Superior Court of Justice judge-only trial, which is in its fifth week, is scheduled to continue Thursday with cross-examination of Howden.
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